Law School Discussion

SFLSD: Oh! The inhumanities.

Miss P

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Re: SFLSD: Happy/sad.
« Reply #56630 on: November 05, 2008, 10:13:46 PM »
The Oregonian is calling the Senate race for Merkley, a Wellstone-style liberal.  Or maybe not that good, but pretty good.


<3

RIP!

And this is why Coleman MUST lose!

And LOABI, bravo on having the conversation, whatever it was!  I know things like that are very tough for the ostriches among us.

Re: SFLSD: Happy/sad.
« Reply #56631 on: November 05, 2008, 10:27:43 PM »
I had lunch with Myron Thompson today.  What about him?

I love Myron Thompson!  Did you like him?

Yeah, I really liked him.  He spoke in front of a bunch of us; then we had a small lunch with him and maybe 10 students.  He talked about the election, affirmative action, sentencing guidelines, clerking, VRA stuff, etc.  Very interesting!  He is ~60 but looks quite young.  Appointed when he was 33!  The only person appointed to the federal bench at a younger age was Story. 

Re: SFLSD: Happy/sad.
« Reply #56632 on: November 05, 2008, 10:36:29 PM »
The Oregonian is calling the Senate race for Merkley, a Wellstone-style liberal.  Or maybe not that good, but pretty good.


<3

RIP!

And this is why Coleman MUST lose

I'm kind of kicking myself for not voting in the motherland. Not that it would have changed anything.

Re: SFLSD: Happy/sad.
« Reply #56633 on: November 05, 2008, 11:20:36 PM »
Thanks, P!

---

Cady, how long until the election is sorted out?

Re: SFLSD: Happy/sad.
« Reply #56634 on: November 05, 2008, 11:49:46 PM »
It'll be several weeks yet. The recount won't start until the 19th, and I think the only way they won't go ahead with it now is if Franken asks them not to - which he won't do.

Re: SFLSD: Happy/sad.
« Reply #56635 on: November 06, 2008, 12:22:29 AM »
the only way they won't go ahead with it now is if Franken asks them not to - which he won't do.

Or if it goes to the supreme court!

mugatu

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Re: SFLSD: No on Prop 8.
« Reply #56636 on: November 06, 2008, 12:48:04 AM »
I think this defect would also probably bar Mu's proposed (much cleverer) challenge: under a holistic, purposive analysis, EP under the California constitution now means EP for gays and lesbians except with respect to marriage rights.

Nonetheless, I like Mu's idea a lot, and I think it could get some traction in some of the more liberal California courts.  The problems I see are as follows (aside from political fallout and my comment above):

(1) Having marriage laws, even if they are necessarily discriminatory, probably passes strict scrutiny because:
(a) Relationship recognition is important, as all the gay marriage cases make clear;
(b) There is a bundle of federal rights to which Californians can gain access through marriage, hence creating a compelling government interest in offering marriage to its citizens; and
(c) The discriminatory aspect of California's marriage law is as narrowly tailored as possible under California's constitution; without calling marriage "marriage," Californians wouldn't have access to the federal benefits.  Nonetheless, California allows almost everyone over 17 to get married with few restrictions (they just face restrictions about the partners of their choosing).  It also has tried to mitigate the discriminatory effect of having marriage laws by having domestic partnerships that mirror marriage.

(2) Marriage in itself may be a fundamental right (I think the cases say something a little different -- but I think the right wingers would argue it this way) and a state may therefore be required to provide its citizens some access to marriage.

EDIT


I can't remember the cases for which a discriminatory law was able to pass strict scrutiny (although there are, obviously, some.)  It's important, as it would need to be highly distinguished for any traction to result.

As far as 1(a) goes, I think any decision of this type of magnitude would require a stipulation that the domestic partnership laws be rewritten to include everyone (so relationship status would still be observed - keeping constant with case law).  1(b) is true.  I think the argument past CA (and in relation to 1c) is where everything gets a bit dicey.  I think those arguments are necessarily good ones (for the federal level) but my theory is that it will actually overturn before the Supreme Court (using the CA Supreme Court.)  The question presented by the plaintiffs will not be a federal question, so there will not be an appeal to the Supreme Court (no jurisdiction).  Thus, everyone will become a domestic partnership.  (Leading up to the federal lawsuit.)

I think, technically, this has multiple steps.  First, "marriage" is defined as a fundamental right (which is a bit strange to consider since I don't believe I've ever seen case law define marriage).  (Googlefingers gave up Zabloki for that.)  Since states can naturally regulate who gets married (states' issue rather than federal one), the amendment was an attempt to take away a fundamental right from a group classified as a suspect class by state law.  So, since marriage is a benefit conferred by states, any court case should naturally use (or could naturally draw from) state law definitions (I think - I'm a little fuzzy on that one) in evaluating the federal constitutionality of the law.  After that hurdle is passed, just hand the opinion of Loving over to copy it.

So, lets say the above hurdle is not passed and that everyone is california is suddenly in a domestic partnership.  There's a reasonable states' right (via the 10th) to say that states can call a union anything they damn well please, and the federal government can't pick and choose who to give rights to (5th).  Bye bye DOMA, hello rewording of any benefit given to "married" couples as a benefit given to "any two people in a union recognized by a state."  I realize that this is fanciful.  

Re: SFLSD: Happy/sad.
« Reply #56637 on: November 06, 2008, 12:51:22 AM »
the only way they won't go ahead with it now is if Franken asks them not to - which he won't do.

Or if it goes to the supreme court!

omfg someone call boies.

mugatu

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Re: SFLSD: Happy/sad.
« Reply #56638 on: November 06, 2008, 12:58:36 AM »
apropos! 

This is wrong.

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Re: SFLSD: No on Prop 8.
« Reply #56639 on: November 06, 2008, 01:27:13 AM »
I'm so lost on goalie's discussion of various California propositions.  What's 9?  What's a chicken?

See generally Frigaliment


LLOL